Passionate about IP! Since June 2003 the IPKat has covered copyright, patent, trade mark, info-tech, privacy and confidentiality issues from a mainly UK and European perspective. The team is Eleonora Rosati, Annsley Merelle Ward, Neil J. Wilkof, and Merpel. Nicola Searle is currently on sabbatical. Read, post comments and participate! E-mail the Kats here

The team is joined by GuestKats Mirko Brüß, Rosie Burbidge, Nedim Malovic, Frantzeska Papadopolou, Mathilde Pavis, and Eibhlin Vardy

Wednesday, 13 December 2017

There was a major development last week in the saga of the suspension of the member of the Boards of Appeal of the European Patent Office, which, however, still has failed to bring the affair to a conclusion.

To recap the tale which has been dragging on for three years now, a member of the Boards of Appeal was suspended in December 2014 by the President of the European Patent Office, M. Battistelli, pending investigation of various allegations, including dissemination of defamatory material. This caused an outcry, because it is not the President, but the Administrative Council, that has disciplinary supervision over Board of Appeal members. The Administrative Council however confirmed the suspension, and then in October 2015 additionally decided to reduce his salary by half.

The IPKat, in common with most news sources, has up until now not named the Board of Appeal member concerned, although the EPO briefed his nationality some time ago, enabling his identification as Patrick Corcoran – who was apparently the only Irish member of the Boards of Appeal. This has now been widely reported, and so the IPKat sees no need to continue with the anonymity.

Mr Corcoran requested a review of both the original suspension decision, and of the decision to reduce his pay. Both requests were rejected, and these rejections were appealed to the Administrative Tribunal of the International Labour Organisation (available here). The ILO-AT is the only body competent to hear employment disputes from the EPO, which, as an international organisation, is generally exempt from national jurisdiction. Partly because of the large number of the EPO-related cases, the ILO-AT has a huge backlog, and so can take many years to reach decisions.

It was therefore rather surprising that last week the ILO-AT released its decisions relating to the two suspension decisions taken by the Administrative Council (here and here).

The decisions are in substance very similar, and are worth reading in full. Operating on principles of procedural economy, the ILO-AT has only ruled on matters sufficient to dispose of the cases. Therefore, while taking no decision in relation to many of the aspects raised, the ILO-AT has considered that the decisions taken by the Administrative Council were fundamentally flawed, because they were based on an Opinion prepared by the President of the EPO, pursuant to Article 18(1) of the Rules of Procedure of the Administrative Council. However, since M. Battistelli was one of the people allegedly defamed by Mr Corcoran, he had a conflict of interest in the matter, according to the ILO-AT, and should not have been involved in the disciplinary proceedings.

The ILO-AT therefore concluded:

“In the present case, there is a conflict of interest on the part of the President. It stems from the fact that the alleged serious misconduct, with which the complainant was charged, might reasonably be thought to have offended the President specifically, directly and individually. This situation, by itself, casts doubts on the President’s impartiality. Considering the whole situation, a reasonable person would think that the President would not bring a detached, impartial mind to the issues involved. The argument raised by the President in his opinion to the Council (CA/C 6/15), quoted above, namely that pursuant to the applicable rules the President was acting within his competence and had the power and duty to take all necessary steps to ensure the smooth functioning of the Office, is immaterial. The question of a conflict of interest only arises if the official is competent. Accordingly, the question of competency is not an answer to a charge of a conflict of interest. Hence, the Administrative Council erred in not finding that the President had a conflict of interest in the matter. In this situation, in accordance with the provisions in force, the Administrative Council should have sent the matter back to the next most senior official to exercise authority instead of the President, who was precluded from exercising authority because of his conflict of interest.”

The ILO has therefore set aside the suspension decisions, and, in addition to ordering payment of lost pay plus interest, payment of moral damages (€25,000) and costs (€10,000), has ordered that “The complainant shall be immediately reinstated in his former post”.

The problem is, however, that Mr Corcoran has not been reinstated. As further reported by the Irish Times, when Mr Corcoran went to the EPO “last Thursday afternoon he was refused admission and was told the ILO’s judgments had not yet been implemented”.

This is however perhaps not as simple as it may appear. Because the appealed suspensions were not the end of the matter. The Administrative Council repeatedly sought, and failed to achieve, from the Enlarged Board of Appeal, a proposal for Mr Corcoran’s removal from office. That is the only manner, according to Article 23(1) of the European Patent Convention, that a Board of Appeal member can be sacked while in service. But Board of Appeal members are appointed for 5 years, and their appointment can be not renewed. Tucked away in the Report on the 152nd meeting of the Administrative Council of the European Patent Organisation (available here) from 28 and 29 June 2017 is the innocuous-looking paragraph:

“The Council also decided to reappoint 12 members of the Boards of Appeal, and not to reappoint any other person, hence following the reasoned opinion of the President of the Boards of Appeal. It further agreed to the procedure for designating the deputy of the President of the Boards of Appeal in the future, and took note of the intended procedure to handle after-service activities of former board members.”

The phrase “and not to reappoint any other person, hence following the reasoned opinion of the President of the Boards of Appeal” is understood by Merpel to mean that the new (and first-ever under the new arrangements for the governance of the Boards of Appeal) President of the Boards of Appeal has proposed Mr Corcoran’s non-reappointment and the Administrative Council has accordingly not reappointed him. This seems to leave him in legal limbo – if the EPO declines to readmit him, Mr Corcoran may have to appeal yet again to the ILO-AT in regard to this latest decision.

The EPO’s reputation continues to be tarnished by a number of employment disputes, of which this is only the most high profile. The IPKat hopes that under the next President (António Campinos, currently President of the EU IPO takes over as President of the EPO next year) a more orderly work environment conducive to the examination of patents will be established.

Please keep in mind the Comment Moderation Policy when you comment (use a pseudonym and be civil). Also, you can reach Merpel by email at merpel.ipkat@gmail.com.

92 comments:

Car buyer
said...

Noticeable that they are very narrow decisions. The IPO has singularly failed to say that Mr Corcoran is innocent of the accusations made against him.

If I made similar pseudonymous posts against the CEO and a deputy CEO of the company I worked for, I would fully expect to be sacked immediately. So would anyone at any other company. But the CEO and deputy CEO would stay out of it and leave it to someone else. As a result my sacking would stick.

It would be interesting to know whether any other BoA members were not reappointed (except for reasons of retirement or resignation).

If the formerly suspended member is the only non-reappointee then that would speak of unfairness or even malice.

He can hardly be not reappointed due to reasons of "performance" (point 29 of CA/16/15) since he has not been allowed to work for the past 3 years. The other allegations against him made by the office have never been proven, so also cannot be used as grounds not to reappoint.

When reading both decisions of the ILOAT, the decision of the AC and the decision of the President were set aside, and the member should be reinstated immediately. To me, it means that he has to be put in the same position as if the decisions did not exist. He should not be just allowed to sit out the end of his period, but to still have the time to be a member of the boards for all the time he was not allowed to sit as member. Merely letting him sit out the last days of his 5 year period does not correspond to the ILO-AT decision.

Once he goes back to DG1, I.e. under the direct supervision of the actual tenant of the 10th floor, he can expect a rough time. Sanctions and disciplinary measures are looming. I take bets, that disregarding any legal rules, the harassment will continue. The Napoleon of the 10 th floor will take care of this.

It is disgusting to watch what is going on, and the AC shows nothing more than to be a puppet on the strings of an overpowering person claiming to be immune of any court decision. But on the other hand this did not withheld him to sue the member through a private complaint before à German court. To me, this represents the height of cinycism and hypocrisy. Those claims seem to have been dismissed, even in substance.

The way the President of the Boards behaved in this matter is not very glorious either. As a lawyer he should realise the consequences of what he did, which is no more than serving lip service to the ILOAT decisions. He is the willing executioner of the wrath of the king of the EPO.

This whole story does not bode well for the independence of the Boards. May be something for the German Constitutional Court to take into account. But the perception of their independence has been improved (sic)!

A non-renewal under these circumstances seems to be problematic in itself.The disciplinary procedures have not been finished, and the decision to not reappoint has been taken while the disciplinary procedures were running.This sounds like all ingredients for a hidden disciplinary measure are present, which would again fail to meet the requirements of the EPC and the Service Regulations.

IMHO, a reappointment (possibly under conditions) must be done while disciplinary proceedings are still ongoing.

But he is not on the list the President of the BoA published now.

This story will continue, as the poor chap will now fall under the authority of the president of the EPO as of 1. of January 2018, being an examiner again.

@Car buyer"The I[L]O has singularly failed to say that Mr Corcoran is innocent of the accusations made against him."

There is, however, another independent instance which had the opportunity to review the accusations against Mr. Corcoran. As reported in a post by Kluwer Patent Blog:

"Mr. Corcoran has not only won his cases before the ILO, but also before the Regional Court of Munich and the Office of the State Prosecutor in Munich. This is at least what Mr. Corcoran’s attorney told JuVe: [...] “The two ILOAT judgments and several decisions of the Regional Court of Munich and the State Prosecutor of Munich have confirmed without any doubt that Mr. Battistelli’s accusations against my client are unfounded.”)"

Can an employee of DG1 who was previously appointed by the AC to a position in DG3 be disciplined by the President for "offences" committed whilst a member of DG3?

We can perhaps speculate whether the current President has precisely this scenario in mind as an effective way of wiping away all of the problems stemming from the manner in which Mr Corcoran was "disciplined" whilst in DG3.

@Car Buyer: that may wll be, but then the internal decision if the accusations are right have not been finalised yet, therefore this was not a decision he could appeal at ATILO yet. Therefore ATILO could not decide on substance.Furthermore, ATILO only very rarely checks these kind of matters. They are an administrative tribunal, and therefore preferably only check whether the rules have been followed. This time they even avoided deciding whether the rules are legal or have benn legally correctly createf.... They found this decision sufficient to get the case off their table, without looking at the remaining elements of the appeal.

And let us not forget what Mr. Corcoran wrote about Mr. BB: that he is abusing his power at the EPO.This decision by ATILO actually confirms this.(source: https://www.theregister.co.uk/2017/12/06/euro_patent_office_commanded_to_reinstate_nazi_judge_it_attacked/ fourth paragraph from the end of the article)

He hasn’t been found innocent by the ILO because they weren’t asked to do that. They are only an administrative tribunal anyway.

I note that his lawyer has claimed that the facts have been presented to German courts without success for the plaintiffs.

I agree there may be a breakdown in any working relationship but that is almost always the case of a whistle-blower which may be what was effectively the case is here. I haven’t seen the evidence but understand that court documents were presented which had relevance in some way. Perhaps the procedure you suggest may also involve assessing their value? Would a CEO or other c-level position be able to avoid that? Perhaps the innocent man was right??

If you read the ILO decisions themselves, it is plain that they made no decision either way on whether Mr Corcoran is guilty or innocent of the accusations made. The entire basis is merely that Mr Battistelli shouldn't have been involved in the case because he had a conflict of interest. Nothing more.

"...but also before the Regional Court of Munich and the Office of the State Prosecutor in Munich."

I've been unable to find any report of the outcome of relevant cases before the Regional Court of Munich. Please post a link to their final decision if you have one.

Likewise for the State Prosecutor's office. However, as I understand it, they were asked to pursue a criminal charge, but evidently declined. To proceed, they would need strong enough evidence to fully convince a judge. I can't speak for Germany, but in most countries that generally makes state prosecutors unwilling to proceed unless the evidence is strong and clear and they believe that running the case would be in the public interest. I understand that the German "full conviction" standard of proof is usually thought to be somewhat higher than the "balance of probabilities".

So you may be able to say that the State Prosecutor thought it wasn't sufficiently certain that Mr Corcoran was guilty. But you can't say that they thought he was innocent. To say that Mr Corcoran "won" on the substantive defamation issue would be going a bit too far.

Please note that I'm not arguing about whether Mr Corcoran is guilty. Just that there's no basis here for saying that he is innocent either, or that he has "won" on the substantive issue. All the ILO cases show is what was obvious anyway -- that Battistelli has handled the whole business very badly.

Techrights, you've already misrepresented my previous post as incorrect, implying that if Mr Corcoran did defame the President, somehow that would be OK since he's not the CEO of a company. Just because the Appeal Boards are supposed to be independent wouldn't make it OK. I'm resigned to the fact that you will also do your worst with this post, but wouldn't it be much better if you just linked here without comment?

@car buyerSo you know the contents of the judge's postings? How very interesting. I thought they were secret.And he didn't write "posts against the CEO and a deputy CEO of the company he worked for" because he was an independent judge. See?

The complaint about Techrights in Car buyer's blog is the reason why I have gone over to always post at the end a sentence inviting Techrights to keep away from my comments.

It is amazing the way Techrights manages to twist any comment so that it can fit its purpose. Some of the information given in Techrights can be correct, but the way it is put into scene is then harmfully it, be it only for the excessive tone it which it is uttered. By behaving like this, Techrights does not help the causes he thinks he defends.

By the way, the non-patentability of computer programs in EPC1973 and 2000 has a very simple origin: the difficulty in carrying out a meaningful search. The are lots of different programming languages and it is not possible for an examiner to know them all, the more so as each has its own syntax and varying versions.

It has never been envisaged that invention carried out by means of computer were totally excluded from patent protection. Simply the invention could not be residing somewhere in the code lines, it had to be disclosed in plain language. The EPO even accepted for a while short excerpt of programs, but in any application in which the full listing was added, the latter had to be deleted.

I thought that the principle of "innocent until proven guilty" was a universal one - it appears not. If Mr Corcoran had not been proven guilty after due process of law, then we MUST presume he is innocent. Some comments seem to assume that he is guilty until proven innocent.

The ILO-AT found that due process was lacking in this case. Therefore we must presume he is innocent.

In my opinion, the many violations of due process in this case (and the President's partiality is just one of them) are indicative of attempts to secure a conviction by dubious means. Why not do things by the book if your case is sound?

As an outsider to the (obvious) mess of the interactions, I am nonetheless somewhat surprised that stories of this type seem to generate for more "dialogue" and comments than some of the far more meatier legal topics.

Almost akin to a bunch of biddies debating the ongoings of soap operas, while the real world turns.

To US anon:Juducial independence, or lack of it, is quite a meaty topic, I would have thought. And perhaps the Bundesverfassungsgericht (German Constitutional court) thinks so too as it has blocked German ratification of the UPC in order to consider objections on this and other grounds.

A good question, whether a Board of Appeal member, after not being re-appointed, may be subject to disciplinary action by the Office President, for alleged acts while being a Board Member.

Well, the Council did initiate disciplinary proceedings, meaning there are proceedings pending. Starting new proceedings over the same allegations would be forbidden by most jurisdictions "Non bis de eadem re sit actio".

Could the Council turn over these proceedings to the Office President? Hm, considering the judgments, that would appear to be excluded. The next most senior management representative, as suggested by the judgments, may not have sufficient rank. I venture to say that all Vice Presidents suffer from the same bias as the President. So, in this concrete case, I do not see how such a transfer could be done, assuming it is legal in the first place.

What is much more striking is the total lack of remedies for the concerned board member. Having to wait for years without getting a decision on the merits is not acceptable in terms of labour law. There should be a fast track procedure.

I did not see a message terminating the disciplinary proceedings, hence, it seems that these proceedings are still pending. The Board member has no means to speed up the issue, or to ask a court to order a stop of these proceedings. He has to wait until a decision is taken. The current legal system allows to keep him in legal limbo for the rest of his career. This is definitely not acceptable.

So you know the contents of the judges' posts? How very interesting. I thought they were secret. Could you please disclose them/give a link so that I can make my own opinion?As far as I have been told the judge only disclosed content that was already published, e. g. in the press. But surely in a totalitarian regime this can amount to lèse-majesté.

Respected colleague, forgive my limited understanding of the separation of powers in the USA, but lets imagine a situation in which the president suspends a Supreme Court judge, and the senate does nothing to rectify the situation. This would be seen as a lack of such separation and therefore inherently bad within the rule of law as I understand it.

Judges have tenure and are independent for a reason, to hold governments and presidents to account. Such checks and balances are important fundamentals, and discussion of this topic, with respect, does not deserve pejorative comments.

I would add the tone of the language used between respected colleagues should be held to a high standard in this forum, respectful, reflective of facts and not derogatory and would suggest there is no place for ad hominem arguments here.

I have followed this story for years, and there is one thing that really puzzles me. If all this is true, then what we see is not less than the slow and thorough demolition of an individual in the public eye, including his own colleagues. These, however, are sais to be judges, so they are not unaware of issues like independence of the judiciary, presumption of innocence, right to be heard, due process, etc. But all we have heard so far in support of their peers is ... deafening silence.One can only hope for them that the whole story is made of shameless lies.

To all of those wishing to reply to my message, (particularly "Unless you think that it is OK for a patent office to disregard the laws that are supposed to bind it, I suggest that in future you keep your snide comments to yourself."), you quite miss the point of the message.

First, here in the US there is NO shortage of problems with "judicial overlap" of one sense or another. Quite in fact, as it comes to patent law, the lack of respect of the rule of law BY our Supreme Court is the NUMBER ONE problem in our very own patent mess.

Second, the issue itself (as I note, it IS a mess) is not being belittled.

The point being missed is that consistently the items on this blog bringing about the most comments (and the most comments with more feelings than critical thinking) are the items of the nature of this post. Mousekin - I do not know if you are thinking that my post is of the "ad hominem" nature, but it is not. Quite in fact, my post more or less reflects the fact that the author of this post felt compelled to ADD the extra reminder of the "Comment Moderation Policy." My comment augments the fact that OFTEN - and exactly on THIS type of post - the more voluminous commenting descend to the "biddy" level. That observation point of mine is simply accurate.

This is a pretty awesome blog, and since my practice does NOT involve all that much EPO work, I do use the blog to keep abreast of some of the driving Euro matters.

But for all of that, one SHOULD look at my post with LESS "knee-jerk" denial, recognize that my observation is on point, and then look to the point being made: specifically, the relative involvement from the commenting that occurs per topic.

No, I don't have any more access than you to the posts in question. But please re-read what I wrote: "Please note that I'm not arguing about whether Mr Corcoran is guilty."

I will observe that making adverse public comments on the internet about a colleague would be a disciplinary offence in most workplaces, even if they are not defamatory.

Of course, this particular example was very badly handled. Mr Battistelli shouldn't have been involved, both because of his conflict of interest, and because disciplinary matters for the the Boards of Appeal should be handled independently.

Whether Mr Corcoran actually committed the offences he is accused of or not, has become irrelevant. It is however worth noting that there was no firm and public denial by Mr Corcoran of the facts which were held against him.

The whole handling of this affair was tragically wrong. Separation of power was grossly trodden over. This was a first mistake. Then there was the AC deciding beforehand that Mr Corcoran was guilty and simply requested the Enlarged Board of Appeal to merely confirm its decision. That the head of the office was judge and party made it even worse. To top it up, the AC changed the regulation and actually wrote a lex Corcoran which was immediately applicable. Leaking to the press about Mr Corcoran was not glorious either. This shows at best how the AC was not controlling the office but the management was controlling the AC.

That on top of it, the head of the office and VP4 tried to attack Mr Corcoran before a court in Bavaria, was stupid, as on the one hand, the office, and especially its head, never forgets to claim immunity from decisions of national courtsin, so that conversely it cannot act before a national court.

People like the head of the office certainly have legal advisers, so either those are truly incapable, what I doubt, or they had got strict instructions to come out with the required result which is more likely. None of those people, neither the AC had the guts to say no. We all know where it lead when instructions were blindly followed

In any case the reputation of the office is in tatters, as this was not the only mishap of the present top management. The whole situation of the office can only make us sad and revolted.

As suggested by another blogger I wish that this comment is not to be used by Techrights.

Indeed. And if US Anon was familiar with Article 32 of the TRIPS Agreement he might even realise that the EPO shenanigans could have repercussions beyond Europe.http://www.cptech.org/ip/texts/trips/32.html

It was previously noted by some eagle-eyed observers that an emissary of the "heavenly sovereign" (Tenno)was present at the famous EBA hearing on 14 June 2016.Was this a mere coincidence ... ?

To be honest, the guilt or not of Mr. Corcoran is one issue that has largely been overlooked during this sorry saga. If he did post (offensive) comments about the President or one of his friends from a PC located on EPO premises, even if in a public area, then he was clearly taking a big risk - why he did not do this from home or from an Internet cafe is something only he can know.

The simple fact is that the President and the AC came up with ZERO evidence of any "crime"(for wont of a better word), but continued to harass Corcoran nevertheless, so sure were they that he had done something wrong. The first case presented to the BoA was a joke - "here's a pen-drive with 1000 documents on it, we're sure you can find something incriminating in them". I mean, come on, if that was the best "evidence" that they had, then the whole case was pretty thin from the get-go.

It is clearly quite possible that Corcoran did do something that he possibly shouldn't have, but we will never no, so badly has the case been handled. As an EPO employee, I am actually embarassed by the behaviour of the President and the AC, as they have been publicly shown to be malicious, incompetent, and incapable of either understanding or following the rule of law.

I have to wonder why my reply has not been posted. The reply was not offensive -verily, it recognizes that the author of the piece here made a special effort to include a reminder of the comment moderation policy.

I am interested in your comment that "making adverse public comments on the internet about a colleague would be a disciplinary offence in most workplaces, even if they are not defamatory".

Whilst I agree that this is likely true for a "normal" workplace, I question whether it is appropriate to apply such a general rule to the facts of this particular case.

The first reason for this is that, as I understand it, the "public comments" were made pseudonymously. Hence, the public was not in a position to confirm whether the comments really were made by an employee of the EPO. (Indeed, the manner in which the true identity of the commenter was "revealed" is, in my view, much more problematic than the content of the comments... but that is another story.)

The second is that it could be argued that there was a public interest in the information revealed by the comments, with the consequence that the commenter could be afforded the status of a "whistleblower". This could either wholly or partly undermine any disciplinary case against Mr Corcoran, depending upon whether he revealed any "confidential" information that was not connected to the "wrongdoing" that he was seeking to expose.

With these factors in mind, I would be inclined to dismiss all disciplinary charges against Mr Corcoran. However, I am not in possession of all of the relevant facts... though I strongly suspect that the same could be said of the delegates to the AC.

The whole thing is total mess, and a bit more height and sovereignty in the attitude of the office and the AC could have helped to get out of the deadlock situation. The office and the AC have botched it thoroughly, but they will never admit it.

Whether Mr Corcoran is guilty or not, is not any longer prima facie relevant. The way the whole thing was handled by office and the AC is a denial of justice. If it is true that Mr Corcoran has been again put on idle by the AC this is quite scandalous. I thought that one person cannot be charged twice for the same offence. This is however apparently the case.

What is it good to have such a concentration of lawyers on the spot if it is to end up in such a mess? They are not worth what is on their payroll.

I find it further not correct that the fate of a member of the BA is dealt with in a confidential session of the AC in which the person subject to the discussion cannot bring in his point of view. That the texts do not foresee it is not an excuse. The texts have not foreseen either such a mess, and it is the primary fault of the office and of the AC that we are now in such a situation. It will end up with a further round before the ILO-AT, but what will it bring in substance?

I would also like to prefer seeing more information about case law in the blog, and I can understand US Anon, but he should realise that this saga is part of the EPO and has to be discussed, as it shows that something has been going wrong for a while. For the users of the EP system, it cannot be pushed under the carpet.

"It is however worth noting that there was no firm and public denial by Mr Corcoran of the facts which were held against him."

And that's because the rules introduced by Mr. Battistelli - with the approval of the AC - forbid any individual under investigation to discuss the case with anyone - smart move to isolate the accused person while Mr. Battistelli can talk about "weapons and nazi memorabilia" in the press.

The same applied to the suspended and then fired Staff Representatives.

On your first reason, if public comments amount to a disciplinary offence, then the fact that they are pseudonymous doesn't change that. The issue is what the comments say, not whether the public can identify who made them.

On your second reason, whistleblowing may sometimes be justified to expose serious wrongdoings in the public interest, but pseudonymous comments on the internet would not be the right way to go about it.

Where someone has serious allegations and evidence to back them up, but there is effectively no internal channel, it may be justified to take them to a reputable investigative journalist. Such a journalist would check the facts before publication, and protect the source. A report in a reputable newspaper would consequently be much more believable and much more likely to achieve results.

While I've not seen the comments made in the present case, the pseudonymous nature and absence of independent checking would make it difficult to determine whether they were justified by hard evidence. Or were they merely repeating allegations made elsewhere and stating opinions? Or possibly a mixture of all these?

To be frank, I have no idea what the pseudonymous, public comments were. Chances are they were made on this blog, though.

The point that you make about going to a journalist is an important one. However, I am not sure that you appreciate the enormous difficulties (due to the complete lack of independent oversight, the activities of the internal "Stasi" and the draconian disciplinary rules and procedures) that EPO employees face in doing this... or in generating even the smallest scintilla of interest for an "independent journalist" in a story about the EPO.

The topic of the present discussion is a perfect case in point. Apart from an article in the Irish Times - which is understandable in the circumstances - the ILO judgements have received attention only from the usual suspects, that is, a smattering of "specialist" (legal or technical) websites. Why is this?

It is not as if it would be hard for a journalist to independently confirm (eg by reading the Enlarged Board and ILO decisions, as well as the "defamation" actions in Germany and Croatia) important details relating to the present case. Those details would include, for example, official rulings holding that the President has threatened the independence of the EPO's judiciary and that he had a conflict of interest that meant he should never have been involved in the case in the first place.

The journalist could then, for example, speak to Techrights in order to independently confirm that they have received "threats" from the EPO's lawyers that were aimed at "taking down" certain reports about the EPO. They might also make further investigations to establish whether other "publishers" have received similar letters from the EPO's lawyers.

In short, it would be very easy indeed for such a journalist to put together a strong (ie readily defensible) story that contains some "shocking" revelations and that could pose difficult questions for the EPO's management and the AC.

So why is it that no such stories have ever been published in the "mainstream" press? Are we to assume that the world of patents is just too "niche" for the general public to have even the slightest interest in stories that have profound implications for the rule of law in Europe?

It is almost 1 week now since the AC discussed (in camera) the case of the suspended judge. Am I the only one to wonder why there is no publicly available information regarding the AC's decision on his status?

There does not even appear to be a report about any aspect of the AC's meeting. If I didn't know better, I would find this highly suspicious.

"In a closed session, the Council took a final decision in a disciplinary case against an employee appointed by the Council - a case which had attracted significant public attention. This decision was taken with due regard to all relevant elements. The Council expressed its satisfaction at having closed the case. In particular, it underlined its expectation that now - after a long period of intense debate - legal peace would be restored."

Hmmm. "Final" decision? Curious that they do not say what that was or on what grounds it was taken. I expect we will see this heading to the ILOAT yet again... The expression of an expectation that "legal peace" will be restored takes some chutzpah, too.

@PotP: the AC, through its wise and respectable chairman, based on infallible information provided by the President of the Office, has decided that the ILOAT decissions are confidential, and that therefore neither staff, nor staff representation may discuss these descissions, and the implication that staff does not have access to any judicial remedies.Therefore nobody can confirm that Mr. C has been, based on new confidential documents provided by the accuser, which has due to its confidential nature not been communicated to the accused, who has NOT been invited to present his view of the case, and in absence of the accused and in absence of anyone representing the accused, suspended again.But since the President of the Office was not present in the room (after he presented the CONFIDENTIAL, allegedly non-public ILOAT decissions, and the lessons to be learnt), when the AC made the vote, the ILOAT decissions and its implications have been fully recognised.

There is, in the new procedure, by decission of the AC, no procedural flaw present.

As a consequence of the ilo decisions the committee wrote an email to Carl Josefson on 8 December 2017 in which it set out its hope that he would be able to influence the Administrative Council at its meeting last week to take a positive view on Patrick Corcoran’s reappointment. We met with Carl last Thursday and he informed us that a decision had been taken in the disciplinary case and that, as regards reappointment, due to confidentiality obligations he was unable to provide further information. At present we have no details on what the administrative council decided I. The disciplinary case. The amba committee regrets that the administrative council did not take a decision to reappoint Patrick Corcoran, as the consequence of this is that the case will continue to be a burden to everyone involved.

And please do not tell me any longer that the boards are independent. But the perception of their independence has been greatly increased!

Making a decision in a disciplinary case without hearing the person accused is how justice works in dictatorial regimes, but certainly not as it should work in an international organisation. It makes me sad for the EPO.

If the new chairman of the AC and the new President of the BA wanted to make fools of themselves, they could not have done better.

So we are to understand that "the Council took a final decision in a disciplinary case".

Interesting. Given the Enlarged Board and ILO decisions, the only logical decision would have been to withdraw all "charges" in the disciplinary case, thereby terminating the proceedings.

However, it would seem that the situation may not be that simple. This is because only if there are pending disciplinary proceedings is there any obligation of "confidentiality" that would prevent Carl Josefsson from discussing the AC's decision.

Does this suggest that the AC may have decided the case in an illogical (and perhaps illegal) manner? Or does it instead suggest that someone is trying to pull the wool over our eyes by pretending that the matter is "confidential"?

According to reliable sources at EPO, Patrick Corcoran, the during close to 3 years, unduly suspended DG3 judge, has today 20th Dec. 2018 (12 days after the ILO-AT judgment in his favour) still no computer or access to his e-mail account. His phone number has not been restored. His salary transfer for December was still based on the reduced salary.

So it appears that “someone” is impeding the implementation of the ILOAT decisions.

Prof. Dr. Siegried BroßEuropean Patent Convention, Unified Patent Court and the German Basic LawSpeech at the opening ceremony of the office of the patent attorneys and lawyers Cohausz und Florack in Munich on 28 November 2017

As a general principle, not just at the EPO, the details of disciplinary proceedings ought to be kept confidential both before and after a final decision. They certainly are where I work. This is mainly to protect the employee who is the subject of the proceedings.

Of course, Mr Battistelli breached that general principle a while back, by leaking lurid details to the press. Mr Corcoran then asked the Enlarged Board to hold their proceedings in public, apparently so that his side of the story could also come out. But instead the Enlarged Board declined to hear the case at all.

I don't think you should read anything into the fact that the Admin Council is following the general principle of keeping the details confidential. Just because we'd all be interested in knowing doesn't mean that it ought to be made public.

I'm amazed that you think so. There is really nothing "confidential" in the information that a disciplinary case has been closed (without any action being taken), especially if the existence of a pending case was widely known ... for example from a published ILO judgement and/or a published decision of the Enlarged Board!

Are there any other pathetic excuses that you would like to proffer on behalf of the AC, or is that as much as you have for now?

And under threat of disciplinary proceedings if doing a fact finding and deciding on facts...After specific asking the AC, the chair of the AC did not give a guarantee to the independence of th EBA members for this case...And they had a case right before them indicating that the AC has no interest in protecting the BA members from disciplinary measure by the president.

Apologies. It wasn't meant as an insult, just a blunt assessment of the content of your comments.

I mean, really, in whose interests is it to maintain confidentiality at this stage? I don't see how this could possibly be beneficial to Mr Corcoran.

@Oops

True, I was using "published" in the sense of made available to the public - not officially published by the EPO (unless you count a brief mention in the White Book).

I'm not sure if the EPC says what happens if the President disobeys an order (eg to publish a decision) from the Enlarged Board. I doubt that the founding fathers of the EPC ever contemplated that this might happen.

Interesting. Is there any publicly available documentation that can confirm your assertion?

Another question: what authority does the AC have to overrule (or to permit the President to ignore) a decision of the Enlarged Board? I cannot see anything in the EPC that grants the AC such sweeping powers.

Interesting. Is there any publicly available documentation that can confirm your assertion?

My dear Proof, such charming naivety.If you are engaged in a collusive conspiracy with the President of the Office to circumvent the provisions of the EPC you are hardly likely to leave any "publicly available documentation" lying around.

The members of the EBA are fully aware of the situation but they will keep mum because they know that their appointing authority can suspend them ad infinitum with the mere flick of a wrist.

Another question: what authority does the AC have to overrule (or to permit the President to ignore) a decision of the Enlarged Board? I cannot see anything in the EPC that grants the AC such sweeping powers.

An excellent question. But more to the point: I cannot see anything in the EPC that could be used to call the AC to account if it decides to do what it likes ... apart from the legal route to Geneva and the EBA is unlikely to try this for the reasons indicated above.

It's not naivety, just an obvious question. Whilst independent confirmation of assertions might not always be possible, it is always a good idea to ask for it ('cos if you don't ask you don't get).

At the end of the day, it does not matter whether it was the President or the AC that "spiked" the publication ordered by the Enlarged Board of Appeal. This is because the facts speak for themselves: the decision on Mr Corcoran's case has not been published.

If this were not sufficient cause for concern on its own, your comments indicate that at least you believe that members of the Boards of Appeal are not truly independent, on the grounds that they are fearful of reaching decisions that will anger the President and/or the AC. If this is indeed the case, then the BVerfG may well be interested to look into this in connection with the EPO- and UPC-related cases.

In this respect, it would be very interesting indeed if a member of the Boards of Appeal were to provide testimony to the BVerfG on the issue of independence ... especially if it supported your assertions. But how likely is that?

And perhaps a more pertinent question is why are the Members of the Boards of Appeal not banding together to take "joint" action on contentious matters? Whilst individuals may fear being persecuted, it would be impossible for the EPO management and/or the AC to take action if they would need to do so against every member of the Boards.

In this respect, it would be very interesting indeed if a member of the Boards of Appeal were to provide testimony to the BVerfG on the issue of independence ...

Article 22 - Disclosure in legal proceedings(1) A permanent employee shall not, without permission from the President of the Office, disclose, on any grounds whatever, in any legal proceedings, information not already made public of which he has knowledge by reason of his duties. ...

@ Dream on:BoA members are NOT permanent employees.Therefore Article 22(1) ServReg does not apply to BoA members...But after this comment, the next "periodical update of the ServRegs" will undoubtedly "update" this article.

I agree with Francesca. And, in any event, would it not rather prove the point that the Boards of Appeal are not truly independent if the President could forbid them from providing evidence on this subject in a court of law?

And I do not agree with Francesca.Please refer to Article 41 of the EPO Service Regulations.Many BoA members were "permanent employees" prior to appointment and remain so afterwards.There is room for argument about those who worked elsewhere prior to appointment.But if they are not recognised as "permanent employees" then their employment situation is even more precarious as they would not enjoy the protection of Article 41 (3) of the Service Regulations.

... would it not rather prove the point that the Boards of Appeal are not truly independent if the President could forbid them from providing evidence on this subject in a court of law.

It is rumoured that some members of the Boards wanted to participate in an interview about the current situation with an IP magazine.According to Article 20 of the Service Regulations the President should have to give his permission but "Permission for publication ofa work by a member of a Board may only be refused with the agreementof the authority referred to in Rule 12(1) of the Implementing Regulationsto the EPC 2000."

It is said that when a signal of disapproval came from the 10th floor those involved ran for cover and did not risk a confrontation by referring the matter to the "the authority referred to in Rule 12(1) of the Implementing Regulations".

All rumours and hearsay and no documentation I know.But such is the state of affairs at the EPO these days.

If there is anything to the hearsay, then I can only comment that this is a very sad state of affairs indeed.

Apart from the absurdity of requiring Board members to seek permission from the President to comment on the issue of their independence, there is something else that I find strange about the application of the Service Regulations to the Boards. That is, is it not strange that the Boards of Appeal should be bound by Regulations, the drafting of which is de facto controlled by the President - especially if those Regulations could be shown to compromise the independence of the Boards of Appeal?

However, there may be a way out. This is because it seems to me that one could argue that, where Article 20(1) conflicts with Article 15(2) ("Members of the Boards shall, both in the performance of their duties and otherwise, conduct themselves in such a manner as not to detract from confidence in their independence"), it is the provisions of the latter that should prevail. This is because it is surely more important to maintain confidence in the independence of the Boards than it is for the President to have control over "non-public" information regarding the practicalities of how the Office is managed.

Whichever way the cookie crumbles, it would certainly make for an interesting situation if a court (such as the BVerfG), or a party to court proceedings, were to make a formal request for a member of the Boards of Appeal to provide expert evidence on the extent to which independence of the Boards is guaranteed (both in theory and in practice) under the EPC and associated rules and regulations. No doubt the President would object but this would at least bring the issue to a head (and, hopefully, to a resolution).

it would be interesting that a party demands that Mr Corcoran testifies in front of the BVefG and presents the court with the concrete example of his own case: eg how he was treated all along: how he was denied the rigth to access documents charging him, how he was denied the right to be heared, how he was not re-instated in DG3 further than the few remaining days of his mandate in 2017 (out of which close to 3 years were lost due to an abusive and vexatious suspension), and then brought back to DG1 under Battistelli's hierarchical supervision.

This would surely give the Court a smashing insight into a concrete case and it could thus help the BVefG to establish beyond doubt how really "independent" the BoA of the EPO are.

And wait for Battistelli to become the first French President of the UPC Court in Paris soon (the UPC treaty foresees that its first President will be a FR citizen and he is said to want to go for it).

you liked the DG3 saga ? No doubt you will love the independence of the UPC Court under Battistelli !

The Service regulation have changed extensively since June 2017 but the version published on the Internet is still the old one from March 2017.

Article 19 now reads:"Article 19 - Discretion(1) A permanent employee or former employee shall exercise the utmost discretion with regard to all facts and information coming to his knowledge in the course of or in connection with his employment.(2) A permanent employee or former employee shall not, without permission from the President of the Office, disclose, on any grounds whatever, information which has come to his knowledge in the course of or in connection with the performance of his duties and which has not already been made public.(3) Paragraph 2 shall also apply in legal proceedings. In this case, permission may be refused only where the interests of the Organisation or of a Contracting State so require. It may not, however, be refused if, in the opinion of the court, this would be likely to lead to a miscarriage of justice.(4) Paragraph 2 shall not apply to an employee or former employee giving evidence before the Administrative Tribunal of the International Labour Organization in a case concerning an employee or former employee of the Office."

The Service Regulations allow the President to cite vague (and ill-defined reasons) for denying his permission for a (former) to provide evidence before a court of law. (Presumably such decisions can be challenged ... but only before the ILO AT.)

On the other hand the President is completely unable to deny permission in connection with the provision of evidence to the ILO AT.

Is that correct?

What could possibly be the basis for this difference? I would have thought that it would make more sense for the Regulations to instead rely upon the provisions of national laws for establishing an appropriate balance between the interests of confidentiality and those of justice.

More importantly, what basis in the EPC is there for applying non-disclosure obligations to all “information which has come to his knowledge in the course of or in connection with the performance of his duties and which has not already been made public”? Article 12 of the EPC only indicates that there is a duty not to disclose “information which by its nature is a professional secret”.

For members of the Boards of Appeal to comment upon the issue of their independence, the only “non-public” information that they would be imparting is the manner in which, in practice, the EPO implements the provisions of the EPC (and the Service Regulations, etc.) vis-à-vis the members of the Boards. Is it really credible for anyone to assert that this information would amount to a “professional secret” in the sense of Article 12 EPC? I think not!

The article is rather odd and may need a lawyer to dissect. The “on any grounds whatever” sounds rather desperate and child-like in trying to enforce what I imagine may be unenforceable. It would appear that the administration is trying to extend immunity to encompass a self-defined exclusivity.Paragraph 3 raises an issue beyond my knowledge as to what the term “likely to lead to a miscarriage of justice” means in terms of being a court’s opinion. Surely that can only be assessed after a court case or in full knowledge of all facts. During a case a party will not be able to present their best case unless the court considers a miscarriage of justice will otherwise occur? When is a different decision a miscarriage? Paragraph 4 doesnot say any case before the ILO but limits it to one involving an employee or former employee. Why the condition? And when did the ILO-AT last take evidence anyway - they seem to religiously refuse to hear witnesses.

But the article is a perfect example of Techrights corrosive "reporting":a nugget of information (3rd paragraph, just two lines), and a lot of blow-up information that is not topic-relevant and a very polemic pointing of accusing others of lying. Not even an information what the DAV really is (a voluntary association of attorneys, a union any attorney become member to).

Mr. P. C. is also reinstated in decision 3958 (as his first suspension was not according to the rules). In 3960, therefore any consequent prolonging of the suspension is therefore also inffective.Alas, in 3960 AT-ILO refuses to consider the legality of amending rules during the procedure, and applying the new rules retroactively. (consideration 9)

The other three cases were dismissed (3985, 3959, and 3961 (premature, irreceivable)), as the EPO's request to consider the amount of appeals as vexatious, and the corresponding order to bear the office's costs.

So, since the December AT-ILO decision was formally done by the EPO-AC, and then the contract not prolonged, now we have a different situation.Will the PBoA finnaly stand up for his employee?

Interestingly the instruction to reinstate in his former post may be ambiguous. At the time (December), although suspended, he was still in post. His former post would thus have been his post before entering DG3 which, I presume, was examiner in DG1?

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